Hand v. Scott

JAMES MICHAEL HAND, et al., Appellees,v.RICK SCOTT, in his official capacity as Governor of Florida and member of the State of Florida's Executive Clemency Board, et al., Appellants.

On
Appeal from the United States District Court for the Northern
District of Florida

Before
MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges.

MARCUS, Circuit Judge:

Appellants
Rick Scott, in his official capacity as Governor of the State
of Florida, and the other three members of Florida's
Executive Clemency Board (Pam Bondi, Adam H. Putnam, and
Jimmy Patronis) (collectively, the "State Executive
Clemency Board") have appealed from the district
court's orders entered in favor of appellees James
Michael Hand and eight other convicted felons who have
completed their sentences and seek to regain their voting
rights in Florida. In the underlying lawsuit, the appellees
facially challenged, under the Fourteenth Amendment's
Equal Protection Clause and the First Amendment,
Florida's scheme of voter reenfranchisement for convicted
felons, claiming that the State Executive Clemency Board
exercised "unbridled discretion" to deny voter
reenfranchisement in the absence of any articulable
standards. The district court granted summary judgment in
favor of appellees, entering a declaratory judgment,
permanently enjoining the State Executive Clemency Board from
"enforcing the current unconstitutional vote-restoration
scheme" and "ending all vote-restoration processes,
" and commanding the State Executive Clemency Board to
"promulgate specific and neutral criteria to direct
vote-restoration decisions" along with "meaningful,
specific, and expeditious time constraints" on or before
April 26, 2018.

Currently
before this Court is the State Executive Clemency Board's
time-sensitive Motion for Stay Pending Appeal, seeking
provisionally to stay the district court's injunctions,
until this appeal is heard. The parties agree that four
factors are relevant to granting a stay: "(1) whether
the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the
public interest lies." Nken v. Holder, 556 U.S.
418, 426 (2009) (quoting Hilton v. Braunskill, 481
U.S. 770, 776 (1987)). The first two factors are the
"most critical." Id. at 434. We are
satisfied that the State Executive Clemency Board has made a
sufficient showing under Nken to warrant a stay,
and, accordingly, we stay the district court's entry of
injunctive relief until this appeal is resolved by a panel of
the Court. The Fourteenth Amendment expressly empowers the
states to abridge a convicted felon's right to vote. U.S.
Const. amend. XIV, § 2. Binding precedent holds that the
Governor has broad discretion to grant and deny clemency,
even when the applicable regime lacks any standards. And
although a reenfranchisement scheme could violate equal
protection if it had both the purpose and effect of
invidious discrimination, appellees have not alleged -- let
alone established as undisputed facts -- that Florida's
scheme has a discriminatory purpose or effect. And
the First Amendment provides no additional protection of the
right to vote.

I.

First,
the State Executive Clemency Board has shown it will likely
succeed on the merits of the Equal Protection claim. The
appellees have claimed that Florida's
"standardless" voter reenfranchisement regime
facially violates the Equal Protection Clause of the
Fourteenth Amendment. They do not say that the defendants
actually discriminated against any of them on the basis of
race or any other invidious grounds. Rather, the heart of
their claim is that the State Executive Clemency Board's
unbounded discretion will yield an unacceptable
"risk" of unlawful discrimination.

For
starters, we are bound to follow Supreme Court precedent in
Beacham. Beacham v. Braterman, 300 F.Supp.
182 (S.D. Fla. 1969), aff'd396 U.S. 12 (1969).
The case stands for the proposition that Florida did not
violate the Equal Protection or Due Process Clauses of the
Fourteenth Amendment in denying a petitioner's
application for pardon and reenfranchisement, even though the
Governor and selected cabinet officers did so in the absence
of any articulable or detailed standards. Id. at
184. It establishes the broad discretion of the executive to
carry out a standardless clemency regime.

In
Beacham, a convicted felon in Florida challenged the
refusal to grant him a pardon and the concomitant
restoration of his civil rights, including the right to
register to vote. Id. at 182-83. He claimed that
since there were no "established specific standards to
be applied to the consideration of petitions for pardon,
" the plenary denial of that right violated both the
Equal Protection Clause and the Due Process Clause of the
Fourteenth Amendment. Id. at 183. A three-judge
district court panel squarely rejected the claim, holding
that state officials may constitutionally exclude from the
franchise convicted felons and that Florida's
standardless scheme did not violate the Fourteenth Amendment.
The court reasoned that the discretionary pardon power, which
included within its ambit the restoration of civil rights,
"has long been recognized as the peculiar right of the
executive branch of government, " and that the exercise
of that executive power was free from judicial control.
Id. at 184. Accordingly the district court denied
the relief sought in the complaint and dismissed the cause.
The Supreme Court, in a summary decision, affirmed the
holding of the three-judge district court. 396 U.S. 12.

The
district court concluded that, "[u]nlike a fine wine,
[Beacham] has not aged well, " but it remains
binding precedent that cannot, as the district court
suggested, simply be ignored. We are bound by the Supreme
Court's summary determinations. See Picou v.
Gillum, 874 F.2d 1519, 1521 n.3 (11th Cir. 1989)
("The Supreme Court's summary dispositions are of
course entitled to full precedential respect."). A
summary disposition affirms the judgment and that which is
essential to the judgment. Ill. State Bd. of Elections v.
Socialist Workers Party, 440 U.S. 173, 182 (1979)
("[T]he precedential effect of a summary affirmance can
extend no farther than the precise issues presented and
necessarily decided . . . ." (quotations omitted));
see also id. at 182-83 ("A summary disposition
affirms only the judgment of the court below, and no more may
be read into our action than was essential to sustain that
judgment." (citations omitted)). The Supreme Court has
since cited Beacham approvingly, observing, "we
have summarily affirmed two decisions of three-judge District
Courts rejecting constitutional challenges to state laws
disenfranchising convicted felons." Richardson v.
Ramirez, 418 U.S. 24, 53 (1974) (citing
Beacham, 300 F.Supp. 182, aff'd 396
U.S. 12).

Other
precedents confirm the broad discretion of the executive to
grant and deny clemency. In Connecticut Board of Pardons
v. Dumschat, 452 U.S. 458 (1981), the Supreme Court held
that a state was entitled to vest the Board of Pardons with
"unfettered discretion" to grant pardons based on
"purely subjective evaluations . . . by those entrusted
with the decision, " leaving inmates with only a
"unilateral hope" for pardon. Id. at
464-66. Still again, in Ohio Adult Parole Authority v.
Woodard, 523 U.S. 272 (1998), the Supreme Court
reaffirmed that, because clemency decisions are
"matter[s] of grace" by which the executive may
consider "a wide range of factors not comprehended by
earlier judicial proceedings and sentencing determinations,
" the state could allocate pardons in a purely
discretionary manner without procedural safeguards under the
Due Process Clause. Id. at 281. Finally, in
Smith v. Snow, 722 F.2d 630 (11th Cir. 1983), a
panel of this Court addressed Due Process and Eighth
Amendment claims attacking Georgia's purely discretionary
pardon regime. First, we ruled that Smith's Due Process
claim was foreclosed by Dumschat. Id. at
631-32. Next, the Court held that the failure of Smith's
Eighth Amendment claim necessarily followed. Id. at
632. If a state pardon regime need not be hemmed in by
procedural safeguards, it cannot be attacked for its purely
discretionary nature. Id. ("If one has no right
to procedures, the purpose of which is to prevent
arbitrariness and curb discretion, then one clearly has no
right to challenge the fact that the decision is
discretionary.").

Perhaps
of even greater importance, we are obliged to recognize that
§ 2 of the Fourteenth Amendment expressly empowers the
states to abridge a convicted felon's right to vote. It
reads this way:

Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole
number of persons in each State, excluding Indians not taxed.
But when the right to vote at any election for the
choice of electors for President and Vice President of the
United States, Representatives in Congress, the Executive and
Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged,
except for participation in rebellion, or other
crime, the basis of representation therein shall be
reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.

U.S. Const. amend., XIV § 2 (emphasis added). And the
Supreme Court has explicitly cited the text of § 2 as it
has recognized the power of the state to bar felons from
voting. Thus, for example, it has held that "the
exclusion of felons from the vote has an affirmative sanction
in § 2 of the Fourteenth Amendment."
Richardson, 418 U.S. at 54.

It is
also true, however, that since Beacham, the Supreme
Court has recognized that, at least in limited circumstances,
a state's pardon power may be cabined by judicial decree.
Thus, in Hunter, the Supreme Court made it clear
that a state's method for reenfranchising a convicted
felon would violate equal protection if the scheme had
both the purpose and effect of invidious
discrimination. Justice Rehnquist wrote for a unanimous
Court:

Presented with a neutral state law that produces
disproportionate effects along racial lines, the Court of
Appeals was correct in applying the approach of Arlington
Heights to determine whether the law violates the Equal
Protection Clause of the Fourteenth Amendment:
"[O]fficial action will not be held unconstitutional
solely because it results in a racially disproportionate
impact. . . . Proof of racially discriminatory intent or
purpose is required to show a violation of the Equal
Protection Clause."

The
problem for the appellees in this case, however, is that they
have not shown (nor have they even claimed) that
Florida's constitutional and statutory scheme had as its
purpose the intent to discriminate on account of, say, race,
national origin, or some other insular classification;
or that it had the effect of a disparate impact on
an insular minority. All we have is the assertion by the
appellees and a statement by the district court that there is
a real "risk" of disparate treatment and
discrimination, precisely because the Florida regime is
standardless. Such a risk of discrimination, however, is
likely insufficient under Beacham and
Hunter.

Moreover,
we have rejected, en banc, that Florida's
felon-disenfranchisement regime was enacted with a
discriminatory purpose, and the appellees have not offered
anything suggesting otherwise. See Johnson v. Governor of
State of Fla., 405 F.3d 1214, 1223-27 (11th Cir. 2005)
(en banc). In Johnson, we examined whether
Florida's vote-restoration regime, either historically or
as revised over time, had "racial discrimination [as] a
substantial or motivating factor" and determined that it
did not. Id. at 1223. We found no
"contemporaneous evidence showing that racial
discrimination motivated" the initial disenfranchisement
provision, but even assuming that it had been so motivated,
we held that "Florida's felon disenfranchisement
provision is constitutional because it was substantively
altered and reenacted in 1968 in the absence of any evidence
of racial bias." Id. at 1223, 1225. All the
appellees have offered in this case is a "risk"
that standardless determinations "could" lead to
impermissible discrimination; that is not enough to show a
discriminatory purpose or effect. The State Executive
Clemency Board has made a strong showing it is likely to
succeed on appellees' equal protection claim.

II.

We also
conclude that the State Executive Clemency Board will likely
succeed on the merits of the First Amendment claim. The
appellees allege that Florida's felon-reenfranchisement
regime facially violates the First Amendment because it vests
the Executive Clemency Board with "unfettered
discretion" to engage in a "standard-less process
of arbitrary and discriminatory decision-making, which is
untethered to any laws, rules, standards, criteria, or
constraints of any kind, and unconstrained by any definite
time limits, " thereby abridging their right to vote and
creating an impermissible risk of "arbitrary,
biased, and/or discriminatory treatment."
[Plaintiffs' Mot. for Summ. J. at 16,
18] The appellees expressly disclaim reliance on any
anecdotal examples of discrimination and offer nothing
suggesting that any of them were the victims of viewpoint
discrimination, asserting that "[f]acial attacks on the
discretion granted a decisionmaker are not dependent on the
facts surrounding any particular permit decision, "
since "[t]he success of a facial challenge on the
grounds that an ordinance delegates overly broad discretion
to the decisionmaker rests not on whether the administrator
has exercised his discretion in a content-based manner, but
whether there is anything in the ordinance preventing him
from doing so." [Appellees' Resp. to Mot.
for Stay at 10] The appellees, therefore, suggest
that "actual discrimination need not be proven."
[Id. at 12]

Their
theory likely fails for at least three reasons. First, our
case law establishes that the First Amendment affords no
greater voting-rights protection beyond that already ensured
by the Fourteenth Amendment. Because a standardless pardon
process, without something more, does not violate the
Fourteenth Amendment, it follows that it does not run afoul
of the First Amendment. In the second place, Florida's
power to disenfranchise voters is expressly sanctioned by
§ 2 of the Fourteenth Amendment. And finally, no First
Amendment challenge to a felon-disenfranchisement scheme has
ever been successful.

It is
well established in this Circuit that the First Amendment
provides no greater protection for voting rights than is
otherwise found in the Fourteenth Amendment. In Burton v.
City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999), the
plaintiffs alleged that the City of Belle Glade's failure
to annex their housing project deprived them of the right to
vote in violation of the First and Fourteenth Amendments.
Id. at 1183. After rejecting the plaintiffs'
Fourteenth Amendment claim, the Court disposed of
plaintiffs' First Amendment contention, holding that
"since the First and Thirteenth Amendments afford no
greater protection for voting rights claims than that already
provided by the Fourteenth and Fifteenth Amendments, we
conclude that the district court did not err in dismissing
these claims." Id. at 1188 n.9 (citations
omitted). Additionally, in Cook v. Randolph County,
573 F.3d 1143 (11th Cir. 2009), Cook contended that the
County Board of Registrars' attempt to change his voting
registration infringed his right to vote under the First and
Fourteenth Amendments. Id. at 1148. There, a panel
of this Court dismissed Cook's First Amendment claim,
holding still again that "[t]he First and Thirteenth
Amendments afford no greater protection for voting rights
claims than that already provided by the Fourteenth and
Fifteenth Amendments." Id. at 1152 n.4 (quoting
Burton, 178 F.3d at 1188 n.9); see also Irby v.
Virginia State Bd. of Elections, 889 F.2d 1352, 1359
(4th Cir. 1989) ("Having found no violations of the
Equal Protection Clause and the Fifteenth Amendment, we
likewise conclude that plaintiffs' First and Thirteenth
Amendment claims must fail. In voting rights cases, the
protections of the First and Thirteenth Amendments do not in
any event extend beyond those more directly, and perhaps
only, provided by the fourteenth and fifteenth
amendments.") (internal quotation marks omitted)).

Because
Florida likely has established that its
felon-reenfranchisement regime does not violate the Equal
Protection Clause of the Fourteenth Amendment, it is unlikely
indeed that the same exercise of the pardon power violates
the First Amendment. Since a standardless reenfranchisement
scheme, without more, does not state a claim for an Equal
Protection violation based on invidious discrimination, it
likely follows that a standardless scheme, without more,
cannot establish a First Amendment violation based on
viewpoint discrimination. While a discretionary
felon-reenfranchisement scheme that was facially or
intentionally designed to discriminate based on viewpoint --
say, for example, by barring Democrats, Republicans, or
socialists from reenfranchisement on account of their
political affiliation -- might violate the First Amendment,
cf. Hunter, 471 U.S. at 227-28; Shepherd v.
Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978), no such
showing has been made in this case. Indeed, the district
court, having said nothing about invidious purpose, could
discern only that there was a "risk" that a
standardless regime could possibly yield viewpoint
discrimination. Thus, even if the First Amendment could be
employed in this case in lieu of the Fourteenth -- and that
is not an easy argument to sustain in the face of controlling
case law -- something more than risk likely would have to be
shown.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In the
wake of Beacham, Dumschat,
Woodard, and Smith, a purely discretionary
clemency regime does not, without something more, violate the
Fourteenth Amendment. As we see it, a constitutional
challenge arising under the First Amendment but asserting the
same basic claim -- that standardless clemency regimes create
an unacceptable risk of discriminatory determinations -- is
unlikely to yield a different result. In other ...

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